SC reserves decision in Punjab CM re-election proceedings

The Supreme Court has reserved its decision after hearing arguments on petitions related to the recently held election for the coveted post of Punjab chief minister.

The apex court is expected to announce its decision at 6 pm.

As the hearing resumed today, the counsel representing Punjab Assembly Deputy Speaker Dost Mazari, Irfan Qadir, and the counsel of Pakistan Peoples Party (PPP), Farooq H Naek, boycotted the SC proceedings.

The proceedings began with a three-member bench headed by Chief Justice Umar Ata Bandial presiding over the hearing.

Punjab Assembly Deputy Speaker Dost Mazari’s counsel, Irfan Qadir, came on the rostrum where he stated that he was told to not be a part of the proceedings.

“I will not be a part of further proceedings”, he maintained.

Qadir stated that he would file a revision against the order rejecting the petition requesting the formation of a full five-member bench, to which the chief justice replied that the court had decided that there was no need for a full court to hear the case.

“Arguments were made in the court regarding the compliance of the party leader’s instructions,” the Chief Justice of Pakistan said, adding that the lawyers for the parties were told that the Constitution did not allow for obstruction of governance.

Justice Bandial maintained that the request for the formation of the full court was nothing more than delaying the case and apex court judges were not available before the second week of September.

He further maintained that he would prefer to complete the case soon for the sake of governance and crisis resolution.

“Bringing the case before the complete bench is tantamount to subjecting the case to unnecessary adjournment”, the CJ said, reiterating that the matter would have been delayed to September as members of the court were on vacation.

PPP's counsel Farooq Naek also appeared on the rostrum and stated that his party would also not appear in court.

The chief justice, however, told Naek that he had done well in assisting the court on Monday and permitted him to take his seat. Justice Bandial added that the PPP was not made a party in the case.

Continuing with the proceedings, the chief justice said that there was no issue of parliamentary party instructions in the Article 63A case and added that assistance would be required on legal points.

Referring to Awan’s argument from Monday that according to the verdict of former SC judge Sheikh Azmat Saeed's eight-member bench, all the decisions were taken by the party leader, the CJ stated the decision of eight judges related to Article 63A was not a majority.

He asserted that the case in which the eight judges gave the decision was a 17-member bench and if the decision was made by nine members, only then would it be declared a majority.

Justice Bandial questioned if the Supreme Court could be bound by the opinion of eight out of 17 judges and directed Barrister Ali Zafar to assist the court on legal questions.

The CJ added that another way for the hearing to proceed was for the three judges to separate from the bench.

He also urged boycotters of the hearing and the court – the incumbent coalition government – to show some “grace” and listen to the court proceedings.

Barrister Ali Zafar stated that petitions against the 21st Amendment were dismissed by a ratio of 13/4 and that in the 21st Amendment case, Justice Jawad Khawaja had declared Article 63A unconstitutional.

Pervaiz Elahi’s counsel said that the reasons for dismissing the petitions were written separately by several judges, he added that Justice Khawaja was of the opinion that Article 63A prevents members from voting freely.
Justice Jawad Khawaja did not state the reasons for his opinion in the judgment, Ali Zafar said.

Elahi's lawyer maintained that he disagreed with Justice Khawaja's opinion. “What does the Constitution say regarding whose instructions to vote on”, the chief justice asked Ali Zafar to which the barrister stated that according to the Constitution, the voting instructions were given by the parliamentary party.

“Is the parliamentary party separate from the party leader?” the CJ asked.

Elahi’s lawyer responded that a parliamentary party and a party leader were two different things. “According to the Constitution, the party chief implements the decision of the parliamentary party”, Justice Ijazul Ahsan said.

Chief Justice Bandial further stated that the parliamentary party does not take any decision on its own, adding that the decision of the political party is communicated to the parliamentary party in light of what it decides.

Justice Muneeb Akhtar questioned what the definition of a party leader was and if the party chief was only the head of the political party.

Justice Ahsan then questioned where the word parliamentary leader was used, to which Barrister Ali Zafar said that in 2002, the Political Parties Act mentioned the parliamentary party.

The word parliamentary leader instead of the parliamentary party was a mistake, Justice Ijazul Ahsan maintained.

In the 18th and 21st Amendment cases, only the provisions of Article 63 were looked at, Justice Ijazul Ahsan said.

“Regarding Article 63A, the case of the party leader was not observed in detail in the past”, he added.

A judge repeatedly changing his opinion is not a good example, Chief Justice Bandial said. “There should be uniformity in the judge's opinion. I change my opinion only when there is a good reason," the CJ stated.

Additional Attorney General Aamir Rehman then came to the rostrum to make a “few submissions” before the court. Justice Akhtar questioned if the federal government had separated from the decision of the ruling coalition?

“I will assist the court under Article 27(A)”, Rehman said. Let there be no mistake in judgment, the chief justice said, adding that everyone was welcome to support the court.

Pervaiz Elahi’s lawyer, Barrister Ali Zafar, then concluded his arguments.

PTI’s counsel Imtiaz Siddiqui stated that the instructions of the party chief should come in time and that the deputy speaker had said that he received Chaudhry Shujaat’s letter.

Chaudhry Shujaat's lawyer, however, said that the letter was sent to the party members. To which the chief justice asked if the letter was read out at the parliamentary party meeting before the vote?

Justice Ahsan also asked if the letter was read out at the parliamentary party meeting before the vote, stating that the question was whether the letter was read before the polling in front of the parliamentary party. “The question before the court is whether the judgment was read properly or not”, Justice Ahsan said.

The court then adjourned proceedings till 2:30 pm.

After the hearing resumed, former advocate general of Punjab Ahmed Owais came to the rostrum and said that "the issue of Punjab chief minister was under discussion for three months", the PTI lawyer said, highlighting that all members of the PML-Q knew who to vote for.

Barrister Ali Zafar stated that action against deviant members under Article 63A would be taken by the party leader and that the party chief would send declarations against dissidents.

Chief Justice Bandial said that the defence had claimed that the party chief controlled the parliamentary party.

“There is no question of the party chief's control over the party. All powers within the party rest with the leader,” Ali Zafar said.

The powers of the party chief should not be reduced, the barrister said, maintaining that Article 63 gave the parliamentary party power to instruct the members.

“The party chief can give instructions to the parliamentary party but cannot dictate”, he said, adding that the decision of the vote is to be made by the parliamentary party.

He highlighted that around the world, the internal proceedings of parliamentary parties are similar and gave the example of Britain where Boris Johnson resigned at the behest of the parliamentary party.

“Party chief convinces members using his powers on the no-confidence motion, money bills, et cetra”, Ali Zafar said, reiterating that the party head could not dictate the members’ actions.

It is clear that if a member does not vote according to the conscience of the party policy, then he should resign and come back again, Justice Ijazul Ahsan stated.

Barrister Ali Zafar said that the question of defection also came up in the Ayesha Gulalai case, to which the chief justice asked if the Gulalai case had mentioned who would give guidance.

“In the Ayesha Gulalai case, there was a matter of nominating members for various positions”, Ali Zafar said, adding that it was declared that the party leader or his nominated representative could send the disqualification reference.

Justice Ahsan pointed out that the verdict in the Ayesha Gulalai case went against Zafar’s client.

“The Ayesha Gulalai case did go against my client but was according to the Constitution”, the lawyer said.

The defence has referred to the decision against the defecting members, the Chief Justice maintained, to which Zafar said that the decisions of the ECP were not mentioned in the ruling of the deputy speaker.

“Powers are transferred through the party head. There is no doubt that the party leader has an important role”, Chief Justice Umar Ata Bandial said. “However, the instructions for voting are issued by the parliamentary party head,” he added.

Ali Zafar claimed that the deputy speaker did not give the ruling according to the decision of the ECP because he was not bound by the electoral watchdog’s decision.

The chief justice maintained that the decision of the Election Commission was also referred to in the court yesterday, and questioned which law dictated that the apex court was bound by the decisions of the ECP.

“No law binds the Supreme Court to the decision of the Election Commission”, Ali Zafar said.

Justice Ahsan questioned how many disaffected members had participated in the by-election? Faisal Chaudhry stated that out of the 20 dissidents, 16 contested as PML-N, and two contested independent elections. He furthered that of the 18 who contested the elections, 17 were defeated.

The chief justice instructed Faisal Chaudhry to speak at the rostrum next.

Justice Ahsan maintained that according to the defence, instructions were given by party head Imran Khan in the case of defecting members. He stated that the defence said that if the ECP’s decision was annulled, 25 members would be reinstated.

“The defence side says that if the appeal is approved, Hamza's votes would be 197”, he added.

Barrister Ali Zafar argued that the decision of the High Court had come regarding the election of the chief minister and that the ECP’s decision was a past and closed transaction.

“On July 1, the Supreme Court gave a unanimous decision on the election of the chief minister”, he further said.

Justice Ahsan maintained that the by-election agreed to by the court should be allowed and that it was also assured that a run-off election would be conducted based on the results of the by-election.

Ali Zafar then stated that PML-N leader Hamza Shehbaz had given a statement in the Supreme Court and that he had not objected to the by-election. He questioned how they could have objections about the by-elections now. “Hamza said that a run-off election was approved based on the results of the by-election”, Zafar said.

Chief Justice Bandial maintained that the matter of the interpretation of Article 63A had been settled and that there is no need for a further explanation.

“The advocate general of Punjab has also tried to interpret Article 63A and while he made a good effort, his interpretation is incorrect”, he said.

Additional Attorney General Aamir Rehman and advocate Azhar Siddique then came to the rostrum. When asked who Azhar Siddique represented, he stated that they were all together.

Justice Ahsan said that Barrister Ali Zafar had given very detailed arguments and told him to have a seat.

Rehman stated that the court had taken notice of rule 27(A) and that only the attorney general could appear in the notice of rule 27(A).

The CJ replied that the attorney general was abroad and that they could not wait for him.
“I am seeking permission to submit the reports”, Aamir Rehman said, following which he submitted them.

Chief Justice Bandial thanked Rehman for his comments. Rehman stated that the court had said it was necessary to obey the instructions of the party chief, to which Justice Ahsan replied that the deputy speaker did not refer to this court decision in the ruling.

"According to Article 63(A), it is necessary to give power to the parliamentary party. Strengthening the parliamentary party is like strengthening the parliamentary democracy", said Justice Akhtar

The additional attorney general argued that according to the SC decision of 2015, the party leader can give instructions. He argued that the decision of the Supreme Court must be implemented until it is revised.

"It is not mandatory to implement every decision of the Supreme Court", stated Justice Akhtar, adding that Rehman’s argument was strange and that there was no question of voting in this case.

Political bigwigs including PTI’s Babar Awan, Fawad Chaudhry, Shibli Faraz, Azam Swati and Faisal Javed; PML-Q’s Moonis Elahi and PPP’s Farooq H Naek reached the apex court earlier for the hearing.

Earlier, the apex court had rejected the coalition government’s request for the formation of a full court to hear Elahi's petition against the provincial chief minister's election.

A three-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, heard the petition filed by Elahi, who is also a candidate for the CM's office, against the ruling of Punjab Assembly Deputy Speaker Dost Muhammad Mazari over the fate of PML-Q votes in the Punjab CM's election.

Mazari, in his ruling, had rejected 10 votes of the Pakistan Muslim League-Quaid's (PML-Q) members relying upon the Supreme Court's verdict that votes of those lawmakers, who defied the party leadership's instructions, would not be counted.

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